2017 Case Summaries by Topic

Appeals—Justiciability—Mootness

Appeal of contempt judgment that imposed no sanctions is moot because judgment does not carry sufficient social stigma and only mere possibility that judgment might carry future adverse consequences.

Defendant appeals a judgment of punitive contempt based on the finding that he violated the terms of a restraining order and assigns error to the trial court’s denial of his judgment of acquittal. The trial court found defendant in contempt, but did not impose any sanctions. The state argues that the appeal is moot. The court concludes that, absent a sufficiently stigmatizing sanction, a judgment for contempt alone does not carry sufficient social stigma to prevent mootness. Additionally, mere possibility that contempt judgment may have future adverse legal consequences insufficient to prevent appeal from being moot.

State v. Welch, 289 Or App 118 (2017) (Shorr, J.)

Criminal Procedure—Waiver of Appointed Counsel—Intentional waiver

Defendant intentionally waived counsel by rejecting option to have public defender appointed and expressing intent to proceed pro se.

In a consolidated case, defendant appeals judgments of conviction for resisting arrest, driving under the influence of intoxicants, and failure to carry or present a license. He assigns error to the trial court’s conclusion that he waived counsel and to the license suspension fee, $255 DUII conviction fee, and a $50 warrant fee imposed at sentencing. Before trial, the court appointed a public defender. At a later hearing, defendant asked the court to remove the public defender because he believed the attorney was incompetent. The trial court asked defendant if he wanted to hire his own attorney or proceed pro se, and defendant stated that he wanted additional time to retain counsel. At the following hearing, defendant stated that he had been unable to find competent counsel and asked for more time so he could prepare for his defense. Defendant refused to sign a waiver of attorney form. The trial court advised defendant of the dangers of self-representation. On appeal, defendant disputes that he intentionally waived counsel. The court disagrees, concluding that defendant’s rejection of the option for a court-appointed attorney and statements that he needed time to prepare his case demonstrate that he intentionally waived counsel. The trial court did not announce that it was imposing the $15 license suspension fee, $255 DUII conviction fee, and a $50 warrant fee imposed at sentencing, but imposed them for the first time in the judgment. In those circumstances, imposition of the fees was error.

State v. Warren, 289 Or App 77 (2017) (Egan, J.)

Criminal Procedure—Setting Aside Record of Arrest—Arrest for Contempt

When a defendant is charged with the “crime” of contempt and that charge is later dismissed, ORS 137.225(1)(b) (2013) authorizes trial court to set aside the record of arrest.

Defendant appeals from a trial court’s denial of his motion to set aside the record of his arrest for punitive contempt of court, challenging the trial court’s conclusion that ORS 137.225(1)(b) (2013) does not apply to him. Defendant, an attorney, was issued a citation in lieu of arrest for the “offense” of contempt of court for disobeying an order of a circuit court. By information, the state charged him with five counts of the “crime” of contempt, a “U-Misdemeanor.” The contempt charges were later dismissed. Defendant moved under ORS 137.225 for the trial court to set aside the record of his arrest, and the state objected contending that ORS 137.225 only applies to criminal arrests and contempt is not a crime. The trial court denied defendant’s motion. The court concludes that it does not need to determine whether the legislature intended to include charges for contempt under ORS 137.225(1)(b) because, regardless of whether it is actually a crime, the state charged defendant with the “crimes” of contempt.

State v. Simrin, 289 Or App 68 (2017) (Egan, J.)

Defenses—Guilty Except for Insanity Defense—Insufficient Evidence

Evidence insufficient to support GEI defense instruction where no evidence that as a result of defendant’s mental disease or defect he lacked the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Defendant appeals from a judgment of conviction for first-degree burglary, second-degree robbery, identity theft, and possession of methamphetamine. On appeal, he assigns error to the trial court’s refusal to instruct the jury on the guilty except for insanity (GEI) defense and refusal to include a GEI option on the jury verdict form. Evidence at trial showed that defendant had burglarized a residence and, two days later, robbed an adult video store. Prior to trial, defendant was twice evaluated by a psychologist to determine to determine if he could aid and assist in his defense, and a third time for the purpose of offering testimony in support of a potential GEI defense. To establish a GEI defense, a defendant must show that, as a result of a mental disease or defect, he lacked the substantial capacity to appreciate the criminality of his conduct and to conform that conduct to the requirements of the law when he committed the crime. Evidence presented at trial showed that defendant was very low functioning, had persistent auditory hallucinations, and delusional beliefs. Defendant was diagnosed with unspecified schizophrenic spectrum or other psychotic disorder, which did not meet the full criteria for the disorders in the schizophrenia spectrum and other psychotic disorders class, and severe stimulant use disorder. The court concludes that even if there was sufficient evidence from which the jury could conclude that defendant suffered from a mental disease or defect, there was no evidence that, as a result, defendant lacked the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. Because defendant did not establish a connection between defendant’s condition and his conduct, the trial court did not error in denying the GEI instruction or GEI option on the verdict form.

State v. Shields, 289 Or App 44 (2017) (Shorr, J.)

Dependency—Motion to Set Aside Guardianship

In light of the Court of Appeals’ reversal of the underlying permanency judgments, the juvenile court lacked discretion to deny motion to set aside the guardianship judgments.

Mother appeals from juvenile court orders denying her motions to set aside guardianship of her three children. She argues that in light of the appellate court’s decision in DHS v. S.M.H., 283 Or App 295 (2017), which reversed the underlying permanency judgments changing the plan for her children from reunification to adoption, the court was required to grant her motions. While the appeal in S.M.H. was pending, DHS filed petitions for the juvenile court to establish a guardianship and appoint aunt and uncle, who the children had been living with, as legal guardians. Mother filed motions to stay, asserting that she was likely to prevail on appeal, and the trial court denied the motions. At the hearing on DHS’s motions to establish guardianship, mother stipulated to the orders appointing aunt and uncle as guardians with the understanding that she was still appealing the change in the permanency plan from reunification to adoption. After the appellate court reversed the underlying permanency judgments, mother moved to set aside the guardianship orders and requested a new permanency hearing. The juvenile court denied mother’s motions. The court concludes that the juvenile court lacked discretion to deny motion’s motions to set aside the guardianship judgments because, in view of the reversal in S.M.H., there was no permanency plan of guardianship, which is a prerequisite to the establishment of guardianship.

S.H., 289 Or App 88 (2017) (Egan, P.J.)

Juvenile Dependency—Juvenile court’s jurisdiction to continue durable guardianship

Juvenile court erred in failing to determine whether it continued to have jurisdiction over child in durable guardianship.

Mother appeals from a juvenile court judgment entered after the court denied her motion to vacate the guardianship and terminate the court’s wardship over mother’s child. Juvenile court asserted jurisdiction over the child due to mother’s substance abuse in 2012. In a 2013 permanency hearing, the plan for reunification with the child was changed to a durable guardianship. In 2016, mother moved to vacate the guardianship and terminate the court’s wardship over the child on the grounds that she had ameliorated her substance abuse issues. By statute, a durable guardianship may continue only if the juvenile court has jurisdiction over the child. Here, the court concludes that the juvenile court erred by failing to determine whether it continued to have jurisdiction over the child. The court vacates and remands to the juvenile court to make that determination.

DHS v. J.C., 289 Or App 19 (2017) (Armstrong, P.J.)

Evidence—Expert Testimony—Qualifications of Expert

Witness’s experience working with people with traumatic brain injuries qualified her to testify as an expert as to whether defendant’s behavior was consistent with her observations of people with traumatic brain injuries.

Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII) and assigns error to the trial court’s ruling limiting the testimony of a defense expert, a registered nurse, about defendant’s traumatic brain injury (TBI). Defendant’s theory at trial was that the trooper who arrested him for DUII misinterpreted defendant’s TBI symptoms as signs of intoxication. A video recording of defendant’s performance on the field-sobriety tests was played to the jury. The trial court precluded the defense expert, a registered nurse, from testifying that defendant’s behavior on a field sobriety video was consistent with her observations of patients who have TBI. The defense witness had cared for or supervised the care of approximately 20 patients with TBI over her 10 years as a nurse and she frequently works with and regularly observes people with TBI The court concludes that because the witness’s experience gave her “specialized knowledge” regarding the symptoms and mannerisms of TBI patients, she was qualified to testify whether defendant’s behavior in the video was consistent with the behavior she has observed in TBI patients over the course of her career. Because the trial court’s error in excluding the expert testimony was not harmless, the court reverses for a new trial.

State v. Woodbury, 289 Or App 109 (2017) (DeHoog, J.)

Evidence—Non-Hearsay—Out-of-court statement identifying defendant as the shooter not statement of identification

Declarant’s out-of-court statements identifying defendant as the shooter not statement of identification under OEC 801(4)(a)(C).

Defendant appeals from a judgment of conviction for second-degree assault and unlawful use of weapon. On appeal, defendant assigns error to the trial court’s admission of out-of-court statements by the victim’s girlfriend stating that defendant had shot the victim. Evidence at trial established that defendant, the victim, and the victim’s girlfriend were friends. One evening, they and defendant’s girlfriend got together in defendant’s camper trailer. There, defendant confronted the victim about Christmas presents that had been taken from a car. The victim’s girlfriend then heard shots and saw that the victim was hurt. She later identified defendant as the shooter in a lineup.

At trial, two officers testified that the victim’s girlfriend identified defendant as the shooter. Defendant objected on hearsay grounds to the first officer’s testimony and did not object to the second officer’s testimony. Under OEC 801(4)(a)(C) exception to the definition of hearsay for out-of-court statements of identification did not apply to officers’ testimony recounting statements of victim’s girlfriend identifying defendant as the shooter. To qualify as non-hearsay, the identification must result from, and not merely follow, the declarant’s perception of the person. Here, the girlfriend’s identification of defendant did not result from perceiving defendant in the line-up; rather, it resulted from her earlier acquaintance with defendant. Because the hearsay statements were not harmless, the court reverses and remands for a new trial.

State v. Hartley, 289 Or App 25 (2017)

Motion to Suppress—Attenuation—Preservation

State failed to preserve argument that evidence discovered during unlawful extension of a traffic stop was attenuated from that illegality.

This is a consolidated appeal on remand from Oregon Supreme Court for reconsideration in light of State v. Unger, 356 Or 59 (2014). In its earlier decision, the Court of Appeals reversed and remanded the trial court’s judgments, holding that the trial court had erred in denying defendant’s motion to suppress evidence obtained during a warrantless search of a vehicle in which defendant had been a passenger. Evidence presented at the suppression hearing established that an officer stopped the Jeep in which defendant was a passenger because the brake lights were not working and because defendant was not wearing a seat belt. Defendant told the officer he was on parole for armed robbery. The officer obtained the identifications of the defendant and the driver, ran a records check, and requested backup. The officer retained the identifications and requested consent to search the Jeep, which the driver gave. The officer found drugs and scales during that search, which led to the state charging defendant with possession of methamphetamine.

Defendant challenged the search in the trial court, arguing that the officer unlawfully extended the stop when he asked for consent to search instead of proceeding with the traffic investigation. In response, the state argued that defendant did not have a protected privacy interest in the Jeep and, alternatively, that the officer would have discovered the evidence even if defendant had not been unlawfully detained. The trial court ruled that the officer had unlawfully extended the stop by requesting consent to search, but denied suppression on the ground that defendant did not have a protected privacy interest in the Jeep.

The parties essentially reiterated their arguments on appeal. The Court of Appeals reversed and remanded, holding that defendant had a protected privacy interest in the Jeep and that the officer unlawfully seized defendant when he ceased processing the traffic violation and requested consent to search and that the state had failed to establish that the evidence would have been inevitably discovered during the course of a lawful search based on the driver’s consent. The Court also held that the state had failed to prove that the evidence was attenuated from the unlawful detention. The state petitioned for review, and the Supreme Court vacated the court’s decision and remanded for reconsideration in light of Unger. On remand, the court concludes that it had unnecessarily held that the state had failed to prove attenuation because the state never argued attenuation in the trial court or on appeal. Thus, in view of the court’s earlier holdings that defendant had a protected privacy in the Jeep and the state failed to prove that the evidence would have been inevitably discovered, the court reverses and remands.

State v. Knapp, 289 Or App 139 (2017) (Duncan, J.)

Motion to Suppress—Warrantless Search—Scope of Search Incident to Arrest Exception

Search of defendant’s Jeep for two concealed guns lawful incident to defendant’s arrest for carrying a third concealed handgun.

Defendant appeals from a judgment of conviction for three counts of unlawful possession of a firearm and assigns error to the trial court’s denial of his motion to suppress evidence. An officer had initiated a traffic stop after observing defendant speeding. The officer saw defendant “doing a lot of motion,” before coming to a stop. After defendant’s Jeep came to a stop, defendant exited, against the officer’s repeated directions to stay in the car. The officer quickly detained defendant against the Jeep. The officer saw a machete through the window and found pistol magazines, an empty holster, and two knives on defendant. The officer asked defendant what was going on, and defendant said he had “an open carry going on.” The officer asked defendant if he had a permit, and defendant said no. At that point, the officer believed that defendant was in possession of an unlawfully concealed firearm. The officer asked defendant where the gun was, and defendant said nowhere and then in the car. After being handcuffed, defendant told the officer that there were two more guns in the Jeep. The officer asked about the location of the guns and then administered Miranda warnings.

Before trial, defendant moved to suppress. The trial court suppressed defendant’s statements after he was handcuffed, but not the guns on the basis that they were found in a lawful search incident to defendant’s arrest for carrying a concealed weapon. On appeal, the court concludes that the search for the two additional handguns were lawfully discovered incident to defendant’s arrest for carrying a concealed weapon. Under State v. Anfield, 313 Or 554 (2012), the officer’s search of defendant’s Jeep was permissible incident to his arrest for unlawful possession of a firearm even though the officer was searching for evidence of a new crime, not further evidence of defendant’s unlawful act of possession.

State v. Bladorn, 289 Or App 1 (2017) (Hadlock, C. J.)

Sentencing—Probation Revocation—Consecutive Incarceration Sanctions

If the court revokes multiple probationary sentences for separate supervision violations, the court has the authority to impose concurrent or consecutive incarceration sanctions for each term of probationary supervision that is revoked.

Defendant appeals from a judgment revoking four terms of probationary supervision, three of which are to be served consecutively, based on defendant’s admission that he had committed two probation violations. Defendant argues that the trial court erred in imposing three consecutive terms of incarceration because he committed only two supervision violations. The court concludes that the text and context of the controlling rule, OAR 213-012-0040(2), gives the sentencing court authority to impose either consecutive or concurrent incarceration sanctions any time that more than one term of probationary supervision is revoked for separate violations.

State v. McFerrin, 289 Or App 96 (2017) (Tookey, J.)

Sentencing—$2,000 Fine for Third DUII, $255 State Obligation, $60 Mandatory State Amount—Plain Error

Trial court plainly erred in imposing $2,000 fine for defendant’s third DUII conviction because court erroneously believed that the fine was mandatory rather than discretionary when the sentence includes jail. Trial court failed to exercise discretion when imposing a $255 fine. Trial court had no authority to impose $60 mandatory state amount.

State v. Larson, 289 Or App 60 (2017) (Per Curiam)

Sentencing—Compensatory Fine—Plain Error

Imposition of a compensatory fine in addition to a punitive fine is plain error.

State v. Kellison, 289 Or App 55 (2017) (Per Curiam)

Sentencing—Resentencing—Increased sentence and scope of remand

Resentencing court did not error in imposing increased dangerous offender sentence where court articulated wholly logical, non-vindictive reasons for the increased sentence and initial sentencing court’s finding that defendant was a dangerous offender was binding under the law-of-the-case doctrine.

Defendant appeals a judgment of conviction and challenges the sentence he received on remand after a successful appeal. The Court of Appeals had concluded that a 280-month sentence imposed on one of defendant’s convictions was erroneous and remanded for resentencing. On remand, the resentencing court relied on the first sentencing court’s finding that defendant is a dangerous offender and, based on that finding, imposed a 30-year indeterminate sentence with a 120-month minimum determinate sentence.

On appeal, defendant again challenges his dangerous-offender sentence and makes two arguments. First, defendant argues that the increased sentence violates State v. Partain, 349 Or 10 (2010), because the record is insufficient to justify the increase. The court rejects that argument because the resentencing court articulated wholly logical, non-vindictive reasons for the increased sentence. Second, defendant argues that the resentencing court could not rely on the dangerous-offender designation of the initial sentencing court because defendant had not waived jury on remand. The court rejects that argument because defendant did not challenge the trial court’s finding in his first appeal and reversal of his sentence did not reverse the initial sentencing court’s finding that defendant is a dangerous offender.

State v. Rienke, 289 Or App 10 (2017) (Armstrong, P.J.)